Shailaja Jain Vs. SBI & Anr. v. SBI & Anr.

Order

: 19th December 2012. HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MRS. JUSTICE NISHA GUPTA Mr. Avinash Acharya, for the appellant. Mr. Jagdish Vyas, for the respondents. BY THE COURT: <<>> The petitioner-appellant has preferred this intra-court appeal against the order dated 14.09.2012 as passed in CWP No.8439/2011 whereby the learned Single Judge declined to entertain the writ petition on her grievance against the communication dated 18.08.2010 (Annex.5) seeking to dispense with her services from the date of expiry of the term of contract; and on the prayer for consideration of her case for absorption in accordance with the policy framed.

It was submitted before the learned Single Judge, inter alia, that similarly situated employees had been absorbed by the respondent-bank, as would appear from the submissions made in the pending cases before the Hon’ble Delhi High Court and the Hon’ble Allahabad High Court. The learned Single Judge, however, referred to the principles in Uma Devi’s case [(2006) 4 D.B. CIVIL SPECIAL APPEAL NO.216/2012. Shailaja Jain Vs. SBI & Anr. // 2 // SCC page 1] that no direction could be issued for regularization or absorption of the employees appointed for a fixed term. The learned Single Judge observed that no directions contrary to the constitutional bench decision of the Hon’ble Supreme Court could be issued so as to direct the respondents to absorb the petitioner on the basis of two years’ contractual engagement. The learned counsel Mr. Acharya appearing for the petitioner-appellant submits that the appellant has not made the prayer for regularization merely with reference to her two years’ contractual engagement but the prayer had essentially been for consideration of her case for absorption with reference to the policy as framed and implemented by the respondent-bank itself. It is submitted that as per the said policy, the performance of the incumbents like the appellant had been evaluated; and appropriate decisions have been absorption/continuation, as the case may be, on the basis of such evaluation. It is submitted that the appellant made a representation for such absorption, as has been allowed in relation to the other persons in conformity with the policy of the respondent-bank; but this representation, as made on 04.09.2010, has not acquired due attention of the respondents. The learned counsel submits that the only prayer of the appellant is for consideration of her representation with reference to the policy D.B. CIVIL SPECIAL APPEAL NO.216/2012. Shailaja Jain Vs. SBI & Anr. // 3 // framed and implemented by the respondent-bank itself. The learned counsel Mr. Vyas appearing for the respondents submits that the writ petition having been dismissed without notice, he has received the copy of the petition in this appeal only; and has not been able to ascertain all the factual aspects of the matter. The learned counsel, however, is not in a position to controvert the basic submissions that the respondent- bank did frame a policy for absorption of the persons appointed on contractual basis. Having considered the matter in its totality, we are of the view that the limited prayer as made in this appeal deserves to be granted. It appears from the factual matrix available on record that the contractual engagement of the appellant was to continue until

07.09.2010. However, the respondent-bank proceeded to issue the letter dated 18.08.2010 informing the appellant that her contractual engagement shall come to an end on 07.09.2010 and thereupon, she would stand discharged from services. The policy in question seems to have been framed and circulated in the month of July 2010 and further instructions in its regard were issued on 18.08.2010 (Annex.4). Prima facie, it does not appear that the case of the appellant was examined with reference to the aforesaid policy before issuance of the questioned letter dated D.B. CIVIL SPECIAL APPEAL NO.216/2012. Shailaja Jain Vs. SBI & Anr. // 4 //

18.08.2010 (Annex.5). Moreover, before the date of discharge, the appellant did make a representation on 04.09.2010 (Annex.6) giving out the details of her performance and achievements in the business; and made a request for consideration of her case. In our view, if the bank had framed the particular policy and had implemented the same qua the similarly circumstanced persons, the same treatment could have been, and rather ought to have been, extended to the petitioner-appellant; and her case ought to have been considered with reference to the said policy; and an objective decision ought to have been taken whether to continue, absorb or discharge the appellant. In view of the foregoing, we are clearly of the opinion that the limited prayer made by the appellant, for consideration of her representation with reference to the policy framed and implemented by the respondent-bank, deserves to be granted. Accordingly, this appeal is partly allowed to the extent and in the manner indicated. The order as passed by the learned Single Judge is set aside. The writ petition is partly allowed to the extent that the representation as made by the petitioner-appellant on

04.09.2010 shall be considered and decided objectively by the respondents with reference to the referred policy. However, it is made clear that if the said representation had D.B. CIVIL SPECIAL APPEAL NO.216/2012. Shailaja Jain Vs. SBI & Anr. // 5 // already been considered with reference to the policy and any decision had been taken, it shall be required of the respondents to communicate the same to the appellant; and else, the decision as required by this order shall be taken as expeditiously as possible, preferably within two months from today. We make it further clear that in case of any grievance remaining after communication of the decision by the respondent- bank, it shall be open for the appellant to take recourse to the appropriate remedies in accordance with law. No costs. (NISHA GUPTA),J. (DINESH MAHESHWARI),J. cpgoyal/